Electoral agency wants number of commissioners reduced from seven to five

The electoral body is proposing amendments to the Independent Electoral and Boundaries Commission (IEBC) Act to reduce the number of commissioners and deal with the current quorum hitch.

In a brief prepared after top IEBC officials met the National Assembly’s Constitutional Implementation Oversight Committee (CIOC) on June 12, the agency is proposing to reduce the membership of the commission to five, including the chairman.

In addition, the commission is also proposing to amend paragraph 5 of the Second Schedule to the IEBC Act to reduce the number of commissioners needed to form a quorum to transact the business of the commission from current five to three.

In any case, the commission proposes that “Notwithstanding the provisions of Paragraph 5, where a vacancy has occurred and the commission membership is less than five, the quorum shall not be less than 50 per cent of the number of commissioners in post.”

The proposal in effect means that resignations and removal of commissioners will not affect the operations of IEBC as a simple majority can competently run the business of the electoral body.

The proposal to reduce the quorum mirrors the hastily passed amendments to election laws ahead of the October 26, 2017 repeat presidential election reducing the quorum from five members of the commission to half of the existing commissioners, as long as they were not less than three.

AMENDED LAW

Though MPs from the Jubilee Party rushed to pass the amended law ahead of the repeat elections, the same were not applicable in the October 26, 2017 repeat elections and were later nullified by High Court judge Justice Chacha Mwita in April following a petition by Katiba Institute.

On the quorum, IEBC notes that “In the last review of the IEBC Act, the number of members was reduced to seven from nine but the quorum was not reviewed accordingly.”

“The law did not anticipate a scenario where the number of commissioners would suddenly go below seven,” the commission states.

Furthermore, the commission wants Parliament to add a transitional clause “as a stop gap measure” that will enable the current three commissioners to carry out the business of the commission without any legal hindrances.

That said, IEBC says the process to replace the commissioners who have resigned should commence immediately.

“To avert unwarranted challenges or contentions on certain actions taken by the commission and in compliance with the law, it is necessary to urgently fill the vacancies currently obtained to ensure that the commission’s operations continue uninterrupted,” the commission says in the proposal.

RESIGNATIONS

IEBC has since late last year been hit by a myriad problems that have hampered its ability to execute its mandate.

Until now, four commissioners have resigned. Dr Roselyn Akombe resigned on October 17, 2017, just a week to the repeat elections.

“I do not want to be party to such a mockery to electoral integrity,” she said in the statement announcing her resignation.

Then on April 16, three other commissioners namely Consolata Nkatha Maina, Margaret Mwachanya and Dr Paul Kurgat by way of a joint press statement announced their resignations saying they did not have faith in chairman Wafula Chebukati and his leadership.

This was after the commission had sent on compulsory leave the CEO Ezra Chiloba to pave way for an audit into the 2017 election expenses.

Under Mr Chebukati’s leadership, the three commissioners said, “The commission boardroom has become a venue for peddling misinformation, grounds for brewing mistrust, and a space for scrambling for and chasing individual glory and credit.”

QUORUM HITCH

Following the resignations, only three commissioners remain namely Mr Chebukati, Prof Abdi Guliye and Mr Boya Molu.

The number is below the quorum threshold of five required for IEBC to transact business at the plenary.

“Whereas the commission currently has three commissioners, which is the minimum requirement of members pursuant to Article 250(1) of the Constitution thus making it properly constituted, notwithstanding the vacancies, as per Section 7(3) of the IEBC Act, 2011, it is, however, unable to hold commission plenary meetings owing to the provisions of Section 8 of the IEBC Act read together with Paragraph 5 of the Second Schedule to the IEBC Act, 2011. The latter provision (paragraph 5) requires a quorum of at least five members for the conduct of plenary meetings of the commission,” IEBC states in the brief to CIOC.

SELECTION PANEL

On the appointment of commissioners, IEBC has proposed to change the law to make the selection panel that recruits commissioners to be a standing committee.

This, the justification is that it will be easy to fill any vacancies that arise without having to wait on the president to form a selection panel which would then start the recruitment.

Besides the proposals to the membership to the commission, IEBC has also proposed to amend the law with regard to boundary delimitation.

According to the commission, there is need to align the Fifth Schedule of the IEBC Act on boundary delimitation to align with Section 36 of the IEBC Act.

The commission has identified five areas of conflict between the Fifth Schedule and Section 36: Paragraph 1 which provide for the commission to resolve all issues arising from the first review, which is not the current case.

“The key issue pertinent in discerning the matter in question is whether there is ambiguity in the legislation that governs boundary delimitation,” says IEBC.

The commission is waiting for the 2019 Kenya Population and Housing Census figures to start boundary delimitation.

Since the law requires IEBC to complete the boundaries review between 2020 and 2024, debate has been going on internally whether they should complete it before the 2022 General Election or after.